Via Sanantonio Pty Ltd v Commonwealth Bank of Australia

Via Sanantonio Pty Ltd v Commonwealth Bank of Australia concerned two applications to set aside bankruptcy notices issued by the Official Receiver at the request of the Commonwealth Bank of Australia (CBA) against Mr Antonio Mastronardo and Ms Claudia Mastronardo. The applicants argued that the bankruptcy notices were a nullity because the relevant judgments supporting the notices were not attached when the notices were issued, as required by the Bankruptcy Act 1966 (Cth) and Bankruptcy Regulations 1996 (Cth). The applicants contended that this was distinguishable from the Full Federal Court’s decision in Curtis v Singtel Optus Pty Ltd (2014) 225 FCR 458, due to statements in covering letters which accompanied the bankruptcy notices.

The central legal issue was whether the judgments were attached to the bankruptcy notices at the time of issue, as required by s 41(2) of the Bankruptcy Act and reg 4.02 of the Bankruptcy Regulations. The applicants relied on Curtis to argue that the judgments were not attached. The CBA argued that the case of Kessly v Benjamin & Khoury [2018] FCCA 2918 was determinative and that the Full Court’s reasoning in Curtis was binding. The CBA submitted that the covering letters were merely reminders that the supporting documents needed to be served, and did not change the fact that the documents were electronically attached.

The Court held that the covering letters were not sufficient to distinguish Curtis, as they merely reminded the debtors to serve the necessary documents. The Court accepted the reasoning of Baird J in Kessly, which held that the Full Court in Curtis was concerned with the same documents and circumstances of issue. The Court held that the Full Court had determined that at the time of issue, the bankruptcy notice and the copy judgment were electronically attached, satisfying the legislation. The Court found the reasoning in Curtis to be correct and binding, and dismissed the applicants' argument.

The Court dismissed the amended application and ordered that the applicants pay the respondent’s costs, as agreed or assessed.